Law Report 20 July 1999: NHS not liable for all nursing care

WHILST NURSING care for a chronically sick patent might in appropriate cases be provided not by the NHS but by a local authority as a social service, the type of care required by the applicant could not be provided by the local authority.

The Court of Appeal dismissed the appeal of the North and East Devon Health Authority against the decision that its decision to close a facility at which the applicant was cared for and to transfer her care to local authority was unlawful.

The applicant was grievously injured in a road traffic accident in 1971. In 1993 she and seven other comparably disabled patients were moved by agreement from a hospital which was to be closed to a purpose-built facility, Mardon House. In 1998 the respondent health authority decided to close Mardon House and assign the applicant to local authority care. She sought judicial review of that decision.

The judge concluded, inter alia, that the applicant and the other patients had been given a clear promise that Mardon House would be their home for life; and that, in law, all nursing care was the sole responsibility of the NHS acting through the respondent, so that it was not open to the respondent to transfer the responsibility for long-term general nursing care of a patient such as the applicant to the social services department of the local authority.

The respondent appealed. The Secretary of State for Health was given leave to be heard on the appeal. The Royal College of Nursing was also given leave on two limited issues. The critical issue in the appeal was whether nursing care for a chronically ill patient might lawfully be provided by a local authority as a social service (in which case the patient paid according to means) or whether it was required by law to be provided free of charge as part of the NHS.

Richard Gordon QC, Tim Ward and Jennifer Richards (Mackintosh Duncan) for the applicant; James Goudie QC and Siobhan Ward (Bevans Ashford, Bristol) for the respondent; Nigel Pleming QC and Steven Kovats (Solicitor to the Department of Health) for the Secretary of State; Philip Havers QC and Kristina Stern (R.C. Bernhard, Director of Legal Services) for the Royal College of Nursing.

Lord Woolf MR handed down the judgment of the court. He said that the NHS did not have sole responsibility for all nursing care. Nursing care for a chronically sick patient might in appropriate cases be provided by a local authority as a social service, and the patient might be liable to meet the cost of that care according to the patient's means.

The provisions of the National Health Service Act 1977 and the National Assistance Act 1948 did not, therefore, make it necessarily unlawful for a health authority to decide to transfer responsibility for the general nursing care of a chronically sick patient to the local authority's social services. Whether it was unlawful depended, generally, on whether the nursing services were merely (a) incidental or ancillary to the provision of the accommodation which a local authority was under a duty to provide and (b) of a nature which it could be expected that an authority whose primary responsibility was to provide social services could be expected to provide. The services required by the applicant were of a wholly different category.

The decision to close Mardon House was unlawful because the respondent had reached a decision which depended upon a misinterpretation of its statutory responsibilities under the National Health Service Act 1977; the eligibility criteria adopted and applied by the respondent for long- term NHS care were unlawful; and the decision was an unjustified breach of a clear promise given by the respondent to the applicant that she should have a home for life at Mardon House, which constituted unfairness amounting to an abuse of power by the respondent.